Nouman Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL412/2017

[2018] HKCFI 678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 412 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Pakistani national who claimed to have entered Hong Kong illegally on 3 January 2014 only to be arrested on same day.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 29 February 2016 and 6 February 2017. The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 23 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 17 July 2017.  He requested an oral hearing which was set down on 12 December 2017 and the applicant appeared in person.

2.The basis of the applicant’s claim was that if he were to return to Pakistan he would be harmed or even killed by members of the Pakistan Muslim League (N) (“PMLN”) because they were his political rivals and he had previously fought with a group of their supporters in his home area. Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions therefore, I only need to summarise it here.

3.The applicant was born in the Punjab, had 10 years of education, helped his parents farm their land and was single.  They were supporters of the PTI party and the applicant joined as a member in 2010.  The PMLN won the general election in Pakistan in May 2013 and not long after this win the applicant and a group of his PTI friends were taunted by a group of 10‑odd PMLN supporters which ended in a fist fight.  The applicant sustained bruises.  The applicant and his friends reported this attack to the police and some PMLN people were arrested the following day but also released on the same day.  The applicant believed this was because the PMLN were now the ruling party therefore the police would take no serious action against them.

4.The following month the applicant and his friends were verbally threatened and taunted by this group of PMLN supporters because they had reported them to the police.  This was followed by threatening phone calls.  The applicant was threatened by this group not to go to the police again or his life would be in danger.  Some of the applicant’s friends fled to Turkey in 2013 out of fear.  The applicant followed the advice of others and travelled to Mainland China instead.  He had already applied for a passport in July 2010 for no particular reason so he used it to leave Pakistan on 7 August 2013.

5.He stayed in China until 23 August 2013 but was deported when he tried to seek protection in Mainland China.  When he returned to his village he continued to face verbal threats by the same group of PMLN supporters.  His family then advised him to go to Hong Kong to seek protection. His family paid HK$18,000 for him to go to Hong Kong.  He left Pakistan on 28 December 2013 for Mainland China and then when he arrived in Shenzhen, he sneaked into Hong Kong illegally on foot.

6.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.The adjudicator treated the appeal as a rehearing and directed that an oral hearing be conducted.  She correctly set out the law and key legal principles applicable to the four grounds.  She set out the applicant’s claim and grounds of appeal as well as his evidence at the oral appeal hearing.

8.She then assessed his evidence and found a number of inconsistencies that rendered his evidence illogical, unreasonable and therefore unbelievable.  The adjudicator set out in detail in her decision why she came to that conclusion; what made her doubt the applicant was a genuine claimant.

9.The adjudicator then went on to assess the applicants claim against the four applicable grounds.  As far as the torture risk was concerned, she considered the definition of torture as it is set out in section 37U of the Immigration Ordinance and found he had not suffered any severe punishment or torture as defined.  He says he was involved in a fight but on his own facts received only superficial injuries.  After that he received verbal threats either on the telephone or on the streets.  There is no evidence that those threats were made at the instigation of or with the consent or acquiescence of a public official or anyone acting in an official capacity.  There is no evidence he is the target of the State.  His torture risk claim failed.

10.Based on his own facts, the applicant cannot invoke protection under the scope of BOR 3.  The adjudicator found the applicant could not meet the two requirements to invoke protection under BOR 3; he could not prove the ill-treatment would attain a minimum level of severity and that there was a genuine and substantial risk of being subjected to such ill‑treatment if refouled to Pakistan.  His BOR 3 risk claim failed.  As far as his BOR 2 risk was concerned, the adjudicator found no evidence of a real risk or danger against his life that would invoke protection under BOR 2 if refouled to Pakistan; his BOR 2 risk claim failed.

11.The adjudicator also found that his persecution risk claim failed.  The applicant could not prove that he had a well-founded fear of being persecuted.  That fear cannot be speculative and on the facts here the adjudicator found it was not well-founded.  In any event, the adjudicator rejected the applicant’s evidence, found he was not a genuine claimant and therefore, this ground and in effect, any other ground could not be successfully made out.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed the material, claim and evidence carefully.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

13.The supporting affirmation does not list the grounds in an orderly, easy to decipher manner.  Several criticise the adjudicator for failing to enquire into Country of Origin conditions properly as well as fairly and objectively.  She is accused of failing to consider human rights abuses in Pakistan and her decision that internal relocation is a viable option was an error.  The adjudicator failed to consider whether State protection was available.

14.I can deal with these grounds collectively. Firstly, the adjudicator did deal with these matters in her decision.  She did deal with them in enough detail but in fact, in view of her finding that she did not find the applicant credible, she could have dispensed with the analysis of Country of Origin information, State protection and internal relocation.  In other words, she did more than required and the criticism is unfounded.  There is no merit in those grounds.

15.The applicant has mentioned in his affirmation that he did not receive any letter from the Immigration Department inviting him to submit additional information with regard to a BOR 2 claim or the further decision dated 6 February 2017.  He complains he has been deprived of an opportunity to submit additional facts for his BOR 2 risk claim.

16.However, there is no mention of this in the adjudicator’s decision, in fact he is specifically asked if he has any additional information or statements and grounds of appeal in respect of the Further Decision of the Director dated 6 February 2017 and he stated that he has no further information to add to his previous answers and statements.  This would indicate that he did receive that further decision relating to the BOR 2 risk claim and knew it was rejected.  If he had additional information he was invited to submit it at the oral appeal hearing.

17.In his affirmation he explains this away by accusing the interpreter of misinterpreting this offer by the adjudicator.  He claims his rights were then affected and was not given an opportunity to explain it properly to the adjudicator because of the interpreter.  However, he gives no particulars of what mistakes the interpreter made.  There is no merit in this ground either.

18.The applicant does attempt to introduce new evidence in his affirmation as well as make general statements relating to the violence of the PMLN and the Pakistani Prime Minister.  These are not admissible or relevant to this application or these proceedings.

19.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

20.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 29^th day of March 2018.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1